Clause 13 - Powers in relation to landfill operators

Waste and Emissions Trading Bill [Lords] – in a Public Bill Committee at 3:30 pm on 8th April 2003.

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Photo of John Hayes John Hayes Shadow Minister (Environment, Food and Rural Affairs) 3:30 pm, 8th April 2003

I beg to move amendment No. 64, in

clause 13, page 9, line 37, leave out

'or for removal for inspection elsewhere'.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss amendment No.65, in

clause 13, page 9, line 42, leave out from 'premises' to 'for' in line 43 and insert 'only'.

Photo of John Hayes John Hayes Shadow Minister (Environment, Food and Rural Affairs)

The amendments deal with a tightening of the regulations that I hope is practical. They would prevent an opportunity for a miscreant—someone who is not abiding by the terms of the Bill—to store evidence somewhere other than in the place where the offence was committed. That seems to strengthen the provisions in an important way. The process of enforcement will not always be easy or comfortable. If people are determined not to abide by the requirements of the new regulations, they will be both clever and manipulative in going about their business. We need to be absolutely clear about how we are to implement the provisions in order to minimise the opportunities for abuse. The amendments do precisely that.

Amendment No. 65 deals with premises on which inspections take place and the removal of material for inspection elsewhere. It is important that we send out a signal to anyone who is intending not to play by the rules that there will be no easy escape. The two amendments send that signal and give additional powers to those who will enforce the Bill. I hope that, in tightening the provisions, they go some way towards closing the loopholes to which we have referred.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I listened carefully to the hon. Gentleman and read the amendments, but unless I am missing something, I do not believe that the amendments will strengthen the Bill. In fact, on my reading, they will weaken it. Amendment No. 64 would remove from line 37 the words,

''or for removal for inspection elsewhere''.

There is an argument about whether it is appropriate or fair on the person involved for their records to be removed and examined elsewhere—and, perhaps, even falsified by the monitoring authority. It is unlikely, but theoretically possible, although I do not buy that argument myself. If that is not the argument, prohibiting the removal of records makes the task of the monitoring authority more difficult because it will have to attend the premises where the records are kept and stay there for as long as it takes to examine them. It might be a long process and the representatives of the monitoring authority might need to stay overnight. Alternatively, if they leave the premises and return, and if wrongdoing is occurring, there is a real possibility that the records will be falsified between the first and second visits. The amendment does not make sense and weakens the Bill, so I cannot support it.

Amendment No. 65 would also weaken the provisions, and I find that curious. It would remove the words in brackets in line 42:

''with or without a constable, with any necessary equipment or material and, if need be, by force''.

It would also insert the word ''only.'' Two separate amendments seem to be incorporated into one, and I shall try to deal with both parts. The first part would prevent the monitoring authority from attending with a constable and being able to seize records. If someone has been up to no good and has been falsifying records in a serious way, which has led the monitoring authority to conclude that it needs to attend, and to attend with a constable if it believes that there will be resistance to its attendance at those premises, removing the ability to attend with a constable and to use force in those excessive and unlikely circumstances will mean that the persons who are suddenly sprung upon may say, ''I am sorry, but I am not going to show you my records now.'' Where does it leave the monitoring authority in such a situation if it cannot enforce its will?

Photo of John Hayes John Hayes Shadow Minister (Environment, Food and Rural Affairs) 3:45 pm, 8th April 2003

I may not have been sufficiently clear. The first amendment relates to the need to be clear about the signal that we send out. It is important to send out the signal that people may visit premises and deal with any alleged breach of the regulations there

and then. That system is fair and reasonable, but also firm.

The issue about a constable visiting premises and the use of force is about defining, and therefore limiting, the powers available to the authority that will enforce the law. If that is included in the Bill, the options available to enter premises and carry out the law are limited, not stemmed. Our amendment would leave out the words between ''to enter premises'' and ''for the purposes of''. That does not prohibit the use of various means to complete the other requirements listed in paragraphs (d)(i), (ii) and (iii). I therefore find it hard to understand how the hon. Gentleman can think that that would weaken the clause.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The words in the Bill explicitly refer to the presence of a constable, which shows the seriousness with which those who drafted the Bill take the matter. I suggest that the amendment, which removes the reference to a constable, would weaken the clause if passed. I do not know whether the monitoring authority would have the ability to have recourse to a constable if the Bill did not explicitly refer to it. Perhaps the Minister will deal with that point. If the use of force is countenanced in legislation, it is always useful for that to be explicitly referred to so that everyone knows where they stand. I would be very uncomfortable with the situation that the hon. Gentleman seems to be suggesting whereby the Bill did not refer to the use of force in the presence of a constable, but where he can suddenly turn up as a consequence of clause 13. That would be unsatisfactory. It would not make the Bill clear, and no one would know where they stood. I am unhappy about that, but I wait to hear what the Minister has to say.

The second part of amendment No. 65 is the inclusion of the word ''only'', which is a separate point to the one that was just made. I sympathise with it, as someone entering premises for a purpose specified in the clause may well have other convenient reasons for entering those premises at the back of their mind. Although it is unlikely, they may regard it as an option to take the opportunity to pursue other matters while in the presence of a constable or otherwise. The word ''only'' is helpful in limiting the purpose for which entry is permitted to the reasons set out in the clause. Without the word ''only'', there is the danger that other purposes that are not mentioned could subsequently be justified. For that reason, I agree with the word ''only''. The word ''solely'' could also have been used in the amendment or in the Bill, if that were to be added.

I shall make one more point on clause 13(3)(b), which saves me from making a clause stand part speech. I am concerned about the breadth given to persons in the subsection, which does not relate simply to the monitoring authority. Lines 33 and 34 state:

''An allocating authority may by regulations make provision enabling the monitoring authority for its area, or persons authorised by the monitoring authority''.

We do not know who these people are. They may not even be members of the Environment Agency, but

people whom it may have authorised, perhaps from a debt collection agency or similar agency. Those people can

''specify the form in which, the place at which and the time at or by which records are to be produced''.

That is a very wide power to give to someone who is not necessarily a member of the Environment Agency, but who is appointed by the Environment Agency for the specific purpose. I would be happier if the Minister agreed to include the word ''reasonable'' at some point, limit the wide power, specify a time limit or otherwise clarify the power. It seems an extraordinarily wide power to give to someone who may not necessarily be a member of the Environment Agency.

Photo of John Hayes John Hayes Shadow Minister (Environment, Food and Rural Affairs)

I want to establish where the hon. Gentleman stands. He seems to want to be less draconian about the breadth of the powers available to Environment Agency officials and others but more draconian when it comes to using force, constables and others. Would it not be better, as my amendments propose, to leave the matter clean and clear, send out an unadulterated signal and then make a judgement about the necessity in both points according to the specific circumstances of the event being dealt with? I do not think that the hon. Gentleman can simultaneously be both a hawk and a dove.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Perhaps with genetically modified animals, which DEFRA is involved in, we might get to that stage in due course.

The answer to the hon. Gentleman is this: I want the clause to be clear so that those who are on the receiving end of it, whether that is a waste disposal authority or whatever, know exactly where they stand. The suggested elimination of words makes it less clear and more open, which is unhelpful in the present circumstances. What I am arguing for in clause 13(3)—which you allowed me to do on a clause stand part point, Mr. Amess—is that words be added to make it clear. The constant theme running through my comments, both on the amendments and the clause stand part point, is clarification. The Committee should reject the amendments, but I would welcome some clarification on clause 13(3)(b) for the reasons that I have given.

Photo of Michael Meacher Michael Meacher Minister (Department for Environment, Food and Rural Affairs) (Environment)

This has been an interesting debate, and there are important points about the exercise of power. In general, I believe that the hon. Gentleman is right, although I take issue with him on his last remarks.

Amendments Nos. 64 and 65 relate to records that landfill operators will be required to keep about the sending of biodegradable municipal waste to landfills. There are good reasons why a landfill operator will need to keep records and make them available to the monitoring authority in its area—no one is disputing that that underlies the debate. Each waste disposal authority will need to provide the monitoring authority in its area with information about the amount of waste arriving, the amount that it sends to landfill and the amount that it has diverted to other waste management options. One way to verify the information will be to obtain records from landfill

operators about the amount of waste that they have accepted from each waste disposal authority over a certain period.

I may not have fully understood amendment No. 64, but it certainly looks as though its intention is to prevent monitoring authorities from being able to remove records from landfill operators for inspection elsewhere. The reason for giving allocating authorities the power to enable monitoring authorities to remove such records is simply practical. It will be necessary to cross-refer between the records kept by landfill operators and the returns made by waste disposal authorities. It will be a much easier administrative task from the point of view of the monitoring authority and landfill operator if the cross-checking of records can be done from a central point.

The hon. Member for Lewes said that the monitoring authority, which in England could read the Environment Agency, could tamper with the records. Although that could be physically possible, it would be virtually inconceivable, so I do not think that that is even a remotely minimal risk. However, the point is that in order to do its job effectively, the monitoring authority will need to remove the records and take them to a central point. It would not be sensible for inspectors to take all the returns from each waste disposal authority to each landfill site and then to take up office space and possibly staff time in that site as they check through the records. It is purely a question of practicality, simplicity and effectiveness. To prevent it would not be desirable.

Photo of John Hayes John Hayes Shadow Minister (Environment, Food and Rural Affairs)

I shall make this point for the third time, because it is important. Compliance is likely to be founded on trust. A signal has to be broadcast that this is fair, clear and open. If one is to increase the likelihood that the Bill will be effective, one needs to send out a signal that that will be done in a proper and open way. For the purposes of this intervention, I shall use the parallel of the auditing of a company's accounts. The auditor visits the company, and does much of the work on its site. There has to be trust. A relationship is established, although not an over-familiar one because there has to be a degree of empiricism and independence. I worry about the idea of material being removed, because that might undermine the trust and therefore the compliance.

Photo of Michael Meacher Michael Meacher Minister (Department for Environment, Food and Rural Affairs) (Environment)

I understand better the hon. Gentleman's point. There is not a very close analogy between an auditor visiting the central office of a major company, where all the records are kept and are ready to hand, and the more diffuse and disaggregated situation of a large number of landfill sites and 121 waste disposal authorities. Waste could go to any of those landfill sites and more than one waste disposal authority could be involved; in most cases it almost certainly is. It is a much more complicated situation. I see the comparison not in terms of openness and transparency, which is a thoroughly good concept, but in terms of practicality. In the case of the accountant, that is a practical way for him to do his work, and in the case of landfill sites the way that I am proposing is the most practical.

Amendment No. 65 concerns entering the premises of a landfill operator. The intention behind it seems to

be to prevent monitoring authorities from entering such premises with the police, with any necessary equipment or material, or by force. Those are sensitive matters. I have made this point, but I shall stress it again: it is vital that the monitoring authorities for each country in the UK have access to the records of landfill operators. They form an essential cross-check on the returns made by waste disposal authorities. What happens if the landfill operator does not comply? We hope and expect that landfill operators will comply with the requirement to keep records and to produce them for inspection. However, any law has to contain a mechanism to enforce it in respect of the few individuals in any large group who do not obey the rules. The monitoring authority must have the power to access such records. In those circumstances, it is important that the Bill permit the use of force to enter premises. Nobody wants to use force unless there is no other way of obtaining the information.

Photo of John Hayes John Hayes Shadow Minister (Environment, Food and Rural Affairs)

My anxiety about the Minister's rejection of the amendment is that it will send out an unhelpful message. In addition, if the Bill were to be amended in the way that we are proposing, and we were left with the words

''to enter premises . . . for the purposes of finding records . . . inspecting . . . and copying them'',

that would not preclude, in extreme circumstances, the means of doing so including the use of other agencies such as the police. Am I right in making that assumption, or is it necessary for the Bill to stipulate precisely the means that the relevant authority can call upon to implement the provisions?

Photo of Michael Meacher Michael Meacher Minister (Department for Environment, Food and Rural Affairs) (Environment) 4:00 pm, 8th April 2003

Clearly, where there is the chance of a breach of the peace, an enforcing authority might wish to take with it the means of enforcement, which normally means a police constable. I assure the hon. Gentleman that those powers are not without precedent. Similar powers for regulating authorities are to be found in Section 108 of the Environment Act 1995. I do not see that there is any other mechanism by which a regulation can be enforced.

Photo of John Hayes John Hayes Shadow Minister (Environment, Food and Rural Affairs)

The Minister misunderstands me. My point is that we could remove the stipulated means of enforcement, and leave the Bill in a more naked form. The hon. Member for Lewes referred to that earlier. Clause 13(3)(d) would then say that entering premises for the purposes of

''(i) finding records relating to the operation of a landfill,

(ii) inspecting them or removing them for inspection elsewhere, and

(iii) copying them;''

would not necessarily preclude taking a constable but would not send out the signal that that was likely in normal circumstances. If we removed that wording, would those steps necessarily be precluded? Do we have to stipulate the enforcement powers precisely for them to be available for those who implement the Bill? Is the Minister with me?

Photo of Michael Meacher Michael Meacher Minister (Department for Environment, Food and Rural Affairs) (Environment)

I think that I understand what the hon. Gentleman is saying, and I should have thought that the answer is probably yes. If legislation enables enforcement or the use of power for a particular

purpose to take place, it is important, under our system, that it says what the mechanisms are. That way one can ensure that the mechanisms are necessary for the purpose but not unreasonable or excessive. Therefore I do not think it appropriate to remove the definition of the mechanism. Keeping the power of enforcement in the Bill but not saying how it would be effected would make me uncomfortable. It is the most minor use of force to obtain a result, and I think that the clause strikes the right balance.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I have to agree with the Minister. He is right to say that the provision is copied from other legislation and that it is standard. If we removed the definition now, there would be a danger of sending out a signal that we wished to dilute that definition in previous legislation.

Photo of Michael Meacher Michael Meacher Minister (Department for Environment, Food and Rural Affairs) (Environment)

Those who spend all their time reading and comparing legislation may draw that conclusion. It is a relevant point.

The second intention behind amendment No. 65 seems to be that monitoring authorities can enter the premises of a landfill operator only for the purposes of finding, inspecting or copying records. I am advised that the amendment is not necessary because the list specified in clause 13(3)(d) is not a list of examples. It is not purely a list of hypothetical actions that could be added; it is a definitive list of the purposes for which the monitoring authority or persons authorised by it may enter premises. That is an important point. The use of the word ''only'' is not necessary. Equally, the use of word such as ''reasonable'', which the hon. Member for Lewes suggested, is not necessary either.

The hon. Gentleman asked what the words in line 34 in clause 13(3), an ''allocating authority'' or

''persons authorised by the monitoring authority'',

referred to. He suggested that it could mean a debt collection agency, for example. That is not the intention. I understand that the relevant monitoring authority in Northern Ireland carries out some of its operations through a group of inspectors who are attached to it but are not necessarily its employees. I am unsure of the detail. It allows for a slightly different situation that applies in one of the devolved Administrations; it is not intended to allow the monitoring authorities to detail very different kinds of bodies or institutions to have those powers.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am grateful to the Minister for that elaboration. My concern is that the allocating authority or, by extension, persons authorised by it, will have potentially unreasonable powers. Under subsection (3)(b), they can

''specify the form in which, the place at which and the time at or by which records are to be produced''.

They will be able to act in what many would objectively regard as an unreasonable manner because there is no constraint on those powers. The word ''reasonable'' or some other constraint would limit those powers; otherwise, they could specify that records should be produced in three hours. It is unlikely, but it is possible under the Bill. However, it

would certainly be unreasonable, even though it was consistent with the Bill's provisions.

Photo of Michael Meacher Michael Meacher Minister (Department for Environment, Food and Rural Affairs) (Environment)

I understand the hon. Gentleman's logic, but we are talking about the monitoring authority, which for England is the Environment Agency. In practice, what the hon. Gentleman suggests means that the Environment Agency or the Scottish Environment Protection Agency could use the powers under subsection (3)(b) to expect landfill operators to provide information in an unreasonable form, excessively fast or in a thoroughly unreasonable manner.

Unless we are to use the Bill to specify absolutely and down to the last minutiae the detail by which those authorities should work, we must have a measure of trust in them. They are not Government Departments, but they are second best; they are closely associated with the Government. I hesitate to say it, but the authorities are also at arm's length. They are independent and sovereign bodies, but they have a close relationship with Government. The suggestion that they would behave in a thoroughly unreasonable way and that we should specify in excessive detail what they can or cannot do is going too far.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am sorry to delay the Committee further. First, this applies not only to the Environment Agency but to all persons authorised by the monitoring authorities, which is one stage further away from the agency. Secondly, as the Minister knows, the concept of reasonableness pervades our legislation. Why should he resist it here?

Photo of Michael Meacher Michael Meacher Minister (Department for Environment, Food and Rural Affairs) (Environment)

The hon. Gentleman has gone back to the phrase in subsection (3),

''or persons authorised by the monitoring authority'';

the suggestion being, in effect, that the Environment Agency can pick on another organisation to carry out some of its key responsibilities on landfill allowances. That simply will not happen in England. It is a job for the agency's own officers. I am told that one of the devolved Administrations has a slightly different organisational pattern, and the provisions is designed to allow for that. There is nothing beyond that; there is nothing sinister about it, and it is not intended to harness or manipulate other organisations to do that rather sensitive work. I hope that the hon. Gentleman will be satisfied with that explanation, and that he will withdraw the amendment.

Photo of John Hayes John Hayes Shadow Minister (Environment, Food and Rural Affairs)

I do not think that we need to spend much more time on this amendment. We have important matters to deal with in later clauses. The Minister used the word ''trust''. Trust is vital, because compliance will be founded on it. The messages that we sent out about trust are important, but one needs a stick as well as a carrot. The hon. Member for Lewes, in his rather befuddled state, which is understandable, given the tortuous train journey that he has to make—he said earlier that he was confused—said that he wanted to be harsh in respect of force and constables, but that he did not want to be too harsh about precisely what the monitoring authority did in carrying out its work.

There was a certain confusion in what the hon. Gentleman said, but notwithstanding that I thought

that clarity had developed between the principal parties. For that reason, I happily beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Clause 14 ordered to stand part of the Bill.